Pg 1 of 6 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------- x In re : Chapter 11 : WESTINGHOUSE ELECTRIC : Case No. 17-10751 (MEW) COMPANY LLC, et al., : : (Jointly Administered) Debtors. 1 : ------------------------------------------------------- x STIPULATION AND ORDER REGARDING DISTRIBUTIONS IN RESPECT OF CASH POOLING CLAIM OF TOSHIBA CORPORATION AND AFFILIATES Upon consideration of this Stipulation and Order In Respect of Cash Pooling Claim of Toshiba Corporation and Affiliates (this "Order"); the terms of this Order having been approved in form and substance by the above-captioned debtors (collectively, the "Debtors"), Georgia Power Company ("Georgia Power"), Oglethorpe Power Corporation ("OPC"), Municipal Electric Authority of Georgia ("MEAG"), and the City of Dalton, Georgia ("Dalton"), as joint owners (Georgia Power, OPC, MEAG and Dalton, collectively, the "Vogtle Owners") of the Vogtle Electric Generating Plant (the "Vogtle Plant"), South Carolina Electric & Gas Company ("SCE&G"), and the South Carolina Public Service Authority ("SCANA" and, together with SCE&G, the "Summer Owners"), and Toshiba Corporation ("Toshiba" and, 1 The debtors in these chapter 11 cases, along with the last four digits of each Debtor's federal tax identification number, if any, are: Westinghouse Electric Company LLC (0933), CE Nuclear Power International, Inc. (8833), Fauske and Associates LLC (8538), Field Services, LLC (2550), Nuclear Technology Solutions LLC (1921), Nuclear Holding Co., Inc. (7944), PaR Nuclear, Inc. (6586), PCI Energy Services LLC (9100), Shaw Global Services, LLC (0436), Shaw Nuclear Services, Inc. (6250), Stone & Webster Asia Inc. (1348), Stone & Webster Construction Inc. (1673), Stone & Webster International Inc. (1586), Stone & Webster Services LLC (5448), Toshiba Nuclear Energy Holdings (UK) Limited (2348), TSB Nuclear Energy Services Inc. (2348), WEC Carolina Energy Solutions, Inc. (8735), WEC Carolina Energy Solutions, LLC (2002), WEC Engineering Services Inc. (6759), WEC Equipment & Machining Solutions, LLC (3135), WEC Specialty LLC (N/A), WEC Welding and Machining, LLC (8771), WECTEC Contractors Inc. (4168), WECTEC Global Project Services Inc. (8572), WECTEC LLC (6222), WECTEC Staffing Services LLC (4135), Westinghouse Energy Systems LLC (0328), Westinghouse Industry Products International Company LLC (3909), Westinghouse International Technology LLC (N/A), and Westinghouse Technology Licensing Company LLC (5961). The Debtors' principal offices are located at 1000 Westinghouse Drive, Cranberry Township, Pennsylvania 16066.
Pg 2 of 6 together with the Debtors and the Vogtle Owners, the "Parties"); and the Parties having agreed and the Court having found that: A. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334; B. This is a core proceeding pursuant to 28 U.S.C. 157(b); C. Notice of the relief granted herein was sufficient under the circumstances and consistent with the Bankruptcy Rules, the Local Rules and the Order Pursuant to 11 U.S.C. 105(a) and Fed. R. Bankr. P. 1015(c), 2002(m), and 9007 Implementing Certain Notice and Case Management Procedures (D.I. 101); D. This Court having previously entered that certain Order Regarding Distributions In Respect of Claims and Interests of Toshiba Corporation and Affiliates on July 20, 2017 [Docket No. 953] (the "Distribution Order"); E. Toshiba having previously filed that certain Notice of Filing of Settlement Agreement Among Toshiba Corporation, South Carolina Electric & Gas Company, and the South Carolina Public Service Authority on July 28, 2017 [Docket No. 1022], which, among other things, confirmed that Toshiba and the Summer Owners had entered into a form of settlement agreement and accordingly the Summer Owners are now "Owners" that are parties to a "Settlement Agreement" (such settlement agreement, the "VC Summer Settlement") as defined in the Distribution Order; F. This Court having entered that certain Order Pursuant to 11 U.S.C. 364 and 105(a) Authorizing Debtors to Enter Into Second Amendments to Existing DIP Credit Agreement and Liquidity Facility Agreement on November 15, 2017 [Docket No. 1760] (the "Second DIP Amendment Order") in connection with a proposed DIP Amendment (as defined in -2-
Pg 3 of 6 the Second DIP Amendment Order) relating to, among other things, that certain Term Sheet to Finalize Funding, Acquisition and Certain Related Transactions dated October 30, 2017, annexed to the motion [Docket No. 1662] as Exhibit B thereto (the "Term Sheet", and the transactions contemplated by thereby, the "Transactions"); G. The Transactions contemplated in the Term Sheet include, among other things, a transaction by which Toshiba would assign the Toshiba Loan Claim 2 to WECHOL in exchange for WECHOL assigning an equal amount of the WECHOL Claim (any amount so assigned, the "Assigned WECHOL Claim") 3 to Toshiba (the "Claim Swap"), and, pursuant to the Term Sheet, consummation of the Claim Swap is a condition precedent to consummation of certain other Transactions contemplated in the Term Sheet; NOW THEREFORE, based on the foregoing, it is hereby Stipulated and Agreed to by and between the Parties, subject to the Bankruptcy Court's approval, as follows: 1. Notwithstanding anything to the contrary in the Distribution Order (and without limiting the terms of the Distribution Order), immediately upon consummation of the Claim Swap, the Assigned WECHOL Claim shall be deemed in all respects a "Toshiba Claim" as defined in the Distribution Order, and all provisions of the Distribution Order will apply to the Assigned WECHOL Claim to the same extent, and subject to the same conditions and limitations (if any), that such provisions apply to any other "Toshiba Claim" pursuant to the Distribution 2 3 As used herein, "Toshiba Loan Claim" shall mean Toshiba's assertion of a $650 million claim (including interest, fees, and any other amounts in connection therewith) against Westinghouse Electric UK Holdings Limited ("WECHOL") for a series of funds advanced by Toshiba to WECHOL commencing in October 2013 and then deposited by WECHOL into the cash pool that was used as a prepetition liquidity facility by Westinghouse Electric Company LLC ("WEC") and certain EMEA Entities (Toshiba Nuclear Energy Holdings (UK) Limited together with its direct and indirect subsidiaries, the "EMEA Entities"). The Toshiba Loan Claim is a "Toshiba Claim" as defined in the Distribution Order, and all provisions of the Distribution Order are applicable to the Toshiba Loan Claim. As used herein, "WECHOL Claim" shall mean approximately $705 million in prepetition claims asserted by WECHOL against WEC including claims in excess of $650 million for monies withdrawn by WEC from the cash pool after Toshiba advanced the $650 million to WECHOL. -3-
Pg 4 of 6 Order, whether or not such provisions are included herein. For the avoidance of doubt, all Distributions (as defined in the Distribution Order) with respect to or on account of the Assigned WECHOL Claim shall be subject to the same treatment as Distributions on account of other "Toshiba Claims" under and as defined in the Distribution Order. 2. Immediately upon consummation of the Claim Swap, the Toshiba Loan Claim shall cease to be a "Toshiba Claim" as defined in the Distribution Order, and none of the provisions of the Distribution Order will continue to apply to the Toshiba Loan Claim. 3. The terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 4. The Court shall retain jurisdiction with respect to all matters arising from or related to the implementation, enforcement or interpretation of this Order. Dated: November 16, 2017 New York, New York s/michael E. Wiles THE HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE ACCEPTED AND AGREED BY: DEBTORS WESTINGHOUSE ELECTRIC COMPANY, LLC, et al. (other than TNEH) /s/ Robert J. Lemons Their: DEBTOR TOSHIBA NUCLEAR ENERGY HOLDINGS (UK) LIMITED /s/ Kyle Ortiz -4-
Pg 5 of 6 TOSHIBA CORPORATION, TOSHIBA NUCLEAR ENERGY HOLDINGS (US) INC. /s/ Van C. Durrer, II GEORGIA POWER COMPANY OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION) MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA THE CITY OF DALTON, GEORGIA SOUTH CAROLINA ELECTRIC & GAS COMPANY /s/ Derek J. Baker -5-
Pg 6 of 6 SOUTH CAROLINA PUBLIC SERVICE AUTHORITY /s/ Derek J. Baker -6-